UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE CENTER FOR REPRODUCTIVE LAW & POLICY,
JANET BENSHOOF, ANIKA RAHMAN, KATHERINE
HALL MARTINEZ, JULIA ERNST, LAURA KATZIVE,
MELISSA UPRETI, and CHRISTINA ZAMPAS,
CASE NO.
Plaintiffs,
vs.
GEORGE W. BUSH, in his official capacity as
President of the United States; COLIN POWELL,
in his official capacity as Secretary of State;
and ANDREW NATSIOS, in his official capacity as
Administrator of the United States Agency for
International Development,
Defendants.
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COMPLAINT
Plaintiffs, by and through their undersigned counsel, bring this action against the
defendants, their agents and successors in office, and in support thereof aver and allege the
following:
INTRODUCTION
1.
This case is brought by a United States-based human rights organization and
individual lawyers against the Defendants’ viewpoint-based censorship of privately funded
speech and association that promotes law reform on abortion.
2.
This censorship of private political speech domestically and overseas directly
impedes Plaintiffs’ ability to further their organizational mission to reform reproductive health
laws worldwide, including abortion laws, in accordance with international human rights
principles. The Defendants are interfering with Plaintiffs’ core political speech in over sixty
countries, as well as in the United States and international forums such as the United Nations.
3.
The censorship on privately funded legal advocacy is part of a broader set of anti-
abortion restrictions set forth in contracts between the United States Agency for International
Development (USAID) and certain non-governmental organizations that receive funding from
USAID (contract provisions attached hereto as Exhibit A) (“the Bush global gag rule”). These
contract provisions are contained in a Memorandum to Defendant Natsios from Defendant
President Bush, reported in 66 Fed. Reg. 17303-13 (Mar. 29, 2001) (“the Bush Memorandum”).
They bar foreign nongovernmental organizations (FNGOs) that receive USAID population funds
from, inter alia, “actively promot[ing] abortion as a method of family planning,” even using nonUSAID funds and even outside the context of the grant or the funded program. 66 Fed. Reg. at
17309. Plaintiffs challenge this prohibition of the Bush global gag rule insofar as it interferes
with their legal and public education advocacy efforts worldwide.
4.
In addition, Plaintiffs challenge the prohibition contained in 22 U.S.C. §
2151b(f)(1) (“the Helms Amendment”) on the use of Foreign Assistance funds “motivat[ing] . . .
any person to practice abortions,” id., to the extent that the Helms Amendment is relied upon by
the Defendants as an alternative basis for their viewpoint censorship on privately funded speech.
5.
The censorship of privately funded speech as applied to law reform advocacy and
public education and as contained in the Bush global gag rule contracts and the Helms
Amendment is hereinafter referred to as “the law reform gag.”
6.
Plaintiffs are the Center for Reproductive Law & Policy (CRLP), a non-profit
human rights legal advocacy organization and individual CRLP staff lawyers engaged in
reproductive law reform worldwide as their central professional mission. Their ability to engage
in human rights fact-finding, public education, effective communication with media, litigation,
2
legislative law reform and the transnational coalition-building with FNGOs needed to do
effective human rights work on abortion law is impeded by the law reform gag. The law reform
gag dilutes their political effectiveness in general, blocks essential channels for their advocacy in
the United States, in international forums, and overseas, and blocks essential access to clients,
victims and information on human rights violations, thus causing ongoing and irreparable harm.
Moreover, the injuries to the plaintiffs and to the American public are exacerbated by the fact
that the law reform gag encourages anti-abortion groups, anti-abortion speech, and enforcement
of restrictive abortion laws.
7.
The law reform gag violates the First Amendment’s guarantees of freedom of
speech, freedom of association, freedom to petition the government for redress of grievances,
and freedom of peaceable assembly; as well as the freedom of expression, political participation,
and political association guarantees in various international treaties signed and ratified by the
United States, including the United Nations Charter (UNC) and the International Covenant on
Civil and Political Rights (ICCPR), and other international agreements adopted by the U.S., such
as the Universal Declaration of Human Rights and the American Declaration of the Rights and
Duties of Man. In addition, the law reform gag violates the Fifth Amendment, both under its
equal protection component because it intentionally discriminates against Plaintiffs and similarly
situated persons who need to associate with FNGOs in order to engage in legal advocacy and
human rights work to reform abortion laws, and under the due process clause because of its
vagueness.
8.
Plaintiffs’ freedom to obtain and share information and ideas and to associate with
FNGOs and their staffs is essential for plaintiffs to: pursue their legal advocacy to establish that
human rights norms support the right to legal abortion; promote abortion law reform worldwide
3
in accordance with human rights principles and international treaties and agreements; and
advocate effectively a human rights approach to abortion to policy-makers in the United States.
9.
Upon information and belief, the law reform gag is currently imposed by the
Defendants in USAID contracts with over 400 FNGOs, which in turn encompass thousands of
key professionals working in the fields of reproductive health and rights in over 60 countries.
10.
The law reform gag does not apply to foreign governments that receive USAID
funds directly. The law reform gag applies both in countries where abortion is legal to some
degree and in countries where it is illegal.
11.
Although the Bush global gag rule technically permits U.S. funding of abortions
for life-saving reasons, and in cases where the woman is pregnant as a result of rape or incest,
Exhibit A at 17306 I(10)(i), the law reform gag is unclear as to the whether any legal advocacy is
allowed with respect to these exceptions. See ¶¶ 58-62 infra.
12.
The law reform gag permits any USAID grantee or subgrantee to engage in
pejorative speech about abortion and to use its non-USAID funds for political or legal activities
to keep abortion illegal, to oppose legal abortion in the United Nations and the United States
Congress, to promote new legal restrictions on abortion, and to make abortions less accessible
where legal. See ¶ 56 infra.
JURISDICTION and VENUE
13.
This Court has jurisdiction under 28 U.S.C. § 1331 because this case arises under
the Constitution, laws, and treaties of the United States.
14.
Venue is proper in this Court under 28 U.S.C. § 1391(e) because a substantial part
of the events giving rise to the claim occurred in this district and because one or more of the
plaintiffs resides in this district.
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PARTIES
A.
Plaintiffs
15.
Plaintiff Center for Reproductive Law and Policy, Inc. (CRLP), is a tax-exempt,
non-profit human rights organization, based in New York, New York, organized under section
501(c)(3) of the Internal Revenue Code. CRLP was established in 1992 to further a domestic
and worldwide mission of establishing reproductive rights as universally recognized and
enforceable human rights through legal advocacy. CRLP’s mission includes the promotion of
the right to choose abortion as a human right and the legislative and judicial reform of abortion
laws. To further this mission, CRLP utilizes: human rights fact-finding; litigation (domestic,
overseas, and in international tribunals); legal and legislative analysis; public education and
media work; training of lawyers and lawmakers; human rights reports; and work to influence the
positions taken by United Nations bodies on reproductive rights and health. CRLP sues on its
own behalf and on behalf of its staff.
16.
CRLP was granted “Special Consultative Status to the Economic and Social
Council” of the United Nations in 1997, and plays a significant role in providing reproductive
rights advocacy and information at U.N. conferences and forums.
17.
CRLP staff lawyers include U.S. citizens and non-resident aliens. CRLP sponsors
internships and training for foreign lawyers and law students in reproductive law work in the
hope that they will later return to their native lands and work in collaboration with CRLP.
18.
The central strategy of CRLP’s international program (IP) is to collaborate with
FNGOs and their staffs in order to develop partnerships that can effectively:
insure recognition of women’s right to abortion as a human right in international
legal documents, including treaties and other agreements among nations;
lobby foreign governments to follow international agreements and decriminalize
and liberalize their abortion laws, and to oppose new legal restrictions on
abortion;
5
campaign for greater access to safe and accessible abortion, where abortion is
already legal; and
lobby the U.S. government and other governments to endorse international
agreements that recognize reproductive choice as a human right.
19.
CRLP’s mechanism for establishing reproductive rights as enforceable human
rights, achieving law reform, and influencing world public opinion is political speech and
association for purposes of speaking. The law reform gag interferes with and distorts CRLP’s
political and legal advocacy. It blocks critical channels for CRLP speech and CRLP’s gathering
of information, creates a chilling effect on many of CRLP’s other audiences, including
governments, and distorts the marketplace of ideas in the United States and in international
forums by putting the weight of the U.S. government behind anti-abortion speech and efforts to
enforce criminal laws restricting abortion.
20.
CRLP has never received funds from the United States government, and would
not accept such funds, except when awarded by courts for successful litigation pursuant to the
Equal Access to Justice Act. CRLP speaks and conducts its legal advocacy with funds
contributed by private individuals and organization, philanthropic foundations, and courtawarded attorney’s.
21.
Plaintiff Janet Benshoof is the President of CRLP and a citizen of the United
States who resides in New York, New York. She received a J.D. degree from Harvard Law
School in 1972. Ms. Benshoof founded CRLP in 1992 in order to promote reproductive rights
worldwide as enforceable human rights, and to use principles of international law to strengthen
the jurisprudential bases of reproductive rights including abortion, in the United States. She
supervises a staff of lawyers and human rights professionals including domestic and foreign
visiting lawyers, and trains lawyers and law students on human rights principles relevant to
abortion law reform and on litigation and legal advocacy to implement, monitor, and enforce
6
such laws. Ms. Benshoof collaborates with FNGOs. As a consequence of the law reform gag,
her legal advocacy work is impeded. She sues on her own behalf.
22.
Plaintiff Anika Rahman is citizen of the United States and of Bangladesh and a
resident of New York, New York. She is a 1990 graduate of the Columbia University School of
Law. Ms. Rahman directs the CRLP’s international program, and oversees collaborative human
rights projects with non-governmental organizations (NGOs) in the United States and over 35
foreign countries. Her legal work includes publishing human rights reports and legal analyses in
order to bring about reform of abortion laws both at the international level and at the national
level, through treaties and other agreements adopted under the auspices of the United Nations.
As a consequence of the law reform gag, her freedom to associate with FNGOs and their staffs in
order to bring about democratic reform of abortion laws and policies and to advance reproductive
rights under international law is infringed. The law reform gag impairs and dilutes her political
speech in each of the countries in which FNGOs are subject to the Bush global gag rule and in
which she now works because she is unable to associate with such FNGOs and their staffs to
maximize the effectiveness of her speech. She sues on her own behalf.
23.
Plaintiff Katherine Hall Martinez is a citizen of the United States who resides in
New York, New York. She is a 1992 graduate of Columbia University School of Law. She is
the deputy director of the international program at CRLP. As a human rights lawyer, she
collaborates with FNGOs and United Nations officials. She also works with U.S. officials in
international forums on agreements and treaties addressing reproductive rights, and works to
strengthen recognition of reproductive rights (including the right to abortion) as international
human rights. Ms. Martinez has worked on law reform efforts in countries in which FNGOs are
subject to the law reform gag. The law reform gag impairs and dilutes her political speech in
each of those countries. In addition, her political speech in international forums and in the
7
United States is impaired because she is unable to associate with FNGOs and their staffs to
maximize the effectiveness of her speech and political advocacy. She sues on her own behalf.
24.
Plaintiff Julia Ernst is a United States citizen and a resident of Virginia. She is a
1994 graduate of the University of Michigan School of Law. Using information obtained from
FNGOs, she lobbies the United States Congress, the President of the United States, and various
federal agencies to protect reproductive rights and to ensure U.S. compliance with international
human rights norms. The law reform gag impairs her political speech in the United States and in
international forums because she is unable to associate with FNGOs and their staffs to maximize
the effectiveness of her speech and political advocacy in order to bring about democratic reform
of abortion laws and policies in the United States and to advance reproductive rights in the
United States and abroad. She sues on her own behalf.
25.
Plaintiff Laura Katzive is a United States citizen and a resident of New York,
New York. She is a 1997 graduate of Cornell University School of Law and has received an
LL.M. in comparative and international law, also from Cornell Law School. She is a staff
attorney at CRLP and a human rights lawyer who, in collaboration with FNGOs, advocates for
abortion law reform in countries around the world, working both at the national level and within
different bodies of the United Nations. In some of the countries in which she works, some
FNGOs receive USAID funds. The law reform gag impairs and dilutes her political speech in
each of the countries in which FNGOs are subject to the Bush global gag rule and in which she
now works because she is unable to associate with FNGOs and their staffs to maximize the
effectiveness of her speech and political advocacy. She sues on her own behalf.
26.
Plaintiff Melissa Upreti is a citizen of Nepal who resides in Queens, New York.
She is a 1995 graduate of North Bengal University Law College in India and received her LL.M.
degree from Columbia Law School in 2000. She attended law school in this country specifically
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to work for the advancement of human rights in her native country and elsewhere in the world,
using the democratic and free speech traditions of the United States. She is a staff attorney in the
international program at CRLP and a human rights lawyer who works to bring about reform of
abortion laws in Asian countries in which FNGOs receive USAID funds. The law reform gag
impairs her political speech in those countries because she is unable to associate with FNGOs
subject to the law reform gag and their staffs to maximize the effectiveness of her speech and
political advocacy in order to bring about democratic reform of abortion laws and policies and to
advance reproductive rights. She sues on her own behalf.
27.
Plaintiff Christina Zampas is a United States citizen and a resident of Queens,
New York. She is a 1994 graduate of Syracuse University College of Law. She is a staff
attorney at CRLP and a human rights lawyer who collaborates with FNGOs in central and
eastern Europe that receive USAID funds in order to bring about reform of abortion laws in those
countries. The law reform gag impairs her political speech in those countries because she is
unable to associate with FNGOs and their staffs subject to the law reform gag to maximize the
effectiveness of her speech and political advocacy in order to bring about democratic reform of
abortion laws and policies and to advance reproductive rights. She sues on her own behalf.
B.
Defendants
28.
George W. Bush is the President of the United States. On January 22, 2001, he
issued a memorandum to USAID directing that it reimpose the “Mexico City Policy” previously
implemented by President Ronald Reagan. On March 28, 2001, he issued an even more
sweeping Presidential Memorandum that censors and chills speech and association that is
directed at promotion of abortion law reform. He is the Chief Executive of the United States and
has sworn to uphold the Constitution of the United States, including, inter alia, the First
9
Amendment thereto, see U.S. Const., art. II, § 1, cl. 8 (proscribing Presidential oath of office).
He is required to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3,
including treaties ratified by the United States Senate, such as the International Covenant on
Civil and Political Rights (ICCPR). He is sued in his official capacity.
29.
Colin Powell is the Secretary of State of the United States. In 1998, Congress
specifically established that the administrator of the Agency for International Development
reports to and is under the direct authority and foreign policy guidance of Defendant Powell. 22
U.S.C. § 6592. He is responsible for “insuring program and policy coordination among agencies
of the United States Government in carrying out the policies set forth in the Foreign Assistance
Act.” 22 U.S.C. § 6593(b)(2). He is also responsible for coordinating all United States
development assistance under Chapter 1 of part I of the Foreign Assistance Act, including “an
overall assistance and economic cooperation strategy.” 22 U.S.C. § 6593(a)(1) & (b)(1). He is
sued in his official capacity.
30.
Andrew Natsios is the Administrator of the United States Agency for
International Development. He is charged by law with implementing the Foreign Assistance
Act, including its prohibition on the use of USAID funds to “motivate” the provision of
abortions, 22 U.S.C. § 2151b(f)(1), and with enforcing contractual provisions, including the
Bush global gag rule, against USAID fund recipients. He is sued in his official capacity.
STATUTORY AND REGULATORY FRAMEWORK
I. 1973 - 1980 : The Helms Amendment
31.
In 1973, Congress amended chapter 32 of Title 22 of the United States Code
(Foreign Relations and Intercourse), which authorized the President to “furnish assistance, on
10
such terms and conditions as he may determine, for voluntary population planning.” 22 U.S.C. §
2151b(b).
32.
In reaction to the Supreme Court decision in Roe v. Wade, 410 U.S. 113 (1973),
recognizing the fundamental constitutional right of women in the United States to choose
abortion, Congress established the Helms Amendment. It prohibits the use of USAID funds or
international development funds “for the performance of abortion as a method of family planning
or to motivate or coerce any person to practice abortions.” 22 U.S.C. § 2151b(f)(1).
33.
This prohibition applies to funds authorized by subchapter I of the FAA,
including, inter alia, population planning assistance, programs for human rights and
development, education and human resources development, international disaster assistance, and
programs to encourage democracy and improve the status of women. See, e.g., 22 U.S.C. §§
2151n, 2151c, 2225, 2151u(h).
34.
In 1973, Senator Helms made clear that the abortion restriction described in ¶ 32
applies only to U.S. government funds; as long as they did not commingle USAID funds, foreign
governments, FNGOs, and international health organizations could provide abortions and
“motivate the practice of abortions” with their private funds. 119 Cong. Rec. 32,293 (1973).
II. 1980-1984 :
Reliance on the Helms Amendment to Censor Abortion Speech
35.
In 1982, USAID imposed viewpoint censorship on descriptive epidemiological
data collected by scientific or medical groups; only the “adverse consequences” of abortion
could be collected and published by USAID grantees.
36.
In 1982, USAID defunded a U.S.-based grantee, the Alan Guttmacher Institute
(AGI), for a scientific publication, International Family Planning Perspectives. USAID
11
determined that references in two of the scientific articles exceeded the “parameters” of USAID
abortion policy, which now prohibited even truthful scientific information about abortion when it
could lead to reform of abortion laws. USAID relied on the “motivate” language of the Helms
Amendment to cut off AGI funding.
III. 1984 – 1992 : Increased Censorship and the Reagan Global Gag Rule
37.
In 1984, the Reagan administration issued a new anti-abortion policy at the
United Nations International Conference on Population in Mexico City (“the Mexico City
Policy”).
38.
Under the Mexico City Policy, FNGOs who used even their private non-USAID
funds to “perform or actively promote abortion as a method of family planning” were ineligible
for any USAID funding.
39.
The Reagan Administration justified the Policy as necessary to strengthen anti-
abortion laws worldwide in order to advance protections for the “unborn” allegedly contained in
the Declaration on the Rights of the Child.
40.
Under the Mexico City Policy, any abortion is considered to be a method of
“family planning” unless the woman’s life is endangered by the pregnancy or the pregnancy was
caused by rape or incest.
41.
USAID permitted U.S.-based organizations to engage in abortion-related
activities with segregated, non-USAID funds, but such U.S.-based recipients were prohibited
from providing any funding to FNGOs that engaged in abortion-related activities, even if such
FNGOs did so with their private funds.
12
42.
USAID prohibited FNGOs from providing “advice, counseling, or information
regarding abortion,” or engaging in “lobbying a foreign government to legalize or make abortion
available … even where [it] uses non-USAID funds” for these activities.
IV. 1993 – 2000 : Progress in Domestic and International Abortion Law Reform
43.
On January 22, 1993, President Clinton rescinded the Mexico City Policy, thereby
permitting FNGO recipients of USAID funds to use non-USAID funds for lobbying and political
campaigns to legalize and reform abortion laws and to advocate recognition of abortion as a
human right in international treaties and United Nations conference reports.
44.
Under the Clinton Administration, USAID adopted four new goals for its
population and health strategy. These goals are: (1) reducing population growth rates to levels
consistent with sustainable development; (2) promoting the rights of couples and individuals to
determine freely and responsibly the number and spacing of their children; (3) improving
individual health, with special attention to the reproductive health needs of women and
adolescents and the general health needs of infants and children; and (4) making programs
responsive to the end-user. Upon information and belief, these remain goals of USAID’s
population and health strategy to this date.
45.
In 1993, CRLP began building its international program and selecting as a focus
low- and middle-income countries where women suffered death and other harms (such as
prosecution) from criminal abortion laws. USAID also typically provides grants only to such
lower income countries. Thus, many of CRLP’s focus countries overlap with countries in which
FNGOs receive USAID funds.
46.
During the period from 1993 to 2000, several major international conferences
were held under the auspices of the United Nations, which resulted in major agreements
13
promoting women’s equality including reproductive rights for women. In 1994, the International
Conference on Population and Development (ICPD) was held in Cairo, Egypt. In 1995, the
Fourth World Conference on Women was held in Beijing, China. Among other issues, a variety
of reproductive health and rights issues were addressed at these conferences, including abortion.
47.
Because President Clinton had rescinded the Mexico City Policy, FNGOs
receiving USAID funds were free, with their private funds, to promote abortion as a human right,
to promote abortion safety, and to urge decriminalization of abortion as a human right at both of
these conferences.
48.
Many health professionals, human rights activists, and lawyers associated with
FNGOs who previously had been subject to the Mexico City Policy participated in these
conferences. Some of the Plaintiffs also participated in these conferences.
49.
The United States endorsed the final reports and goals issued by the Cairo and
Beijing conferences (“the Cairo Programme of Action” and “the Beijing Platform for Action,”
respectively). These reports called for specific legal and policy advances on abortion.
50.
The reports also called for NGO participation in monitoring the agreements, for a
review of laws and policies regarding gender, and for increased political participation of women.
CRLP has undertaken monitoring actions on reproductive rights.
51.
The governments of 179 nations signed the Cairo Programme of Action and 189
signed the Beijing Platform for Action agreements and agreed to follow up on them.
52.
In the wake of the Cairo and Beijing conferences, several nations reformed their
abortion laws, including several low- and middle-income countries. (1) In 1995, Guyana
liberalized its abortion law to permit abortion without restriction as to reason during the first 8
weeks of pregnancy, and on the basis of broad grounds, including socioeconomic considerations,
from 8 to 12 weeks. (2) In 1996, Albania liberalized its law to permit abortion without
14
restriction as to reason during the first 12 weeks of pregnancy. (3) In 1996, Burkina Faso
liberalized its penal code to permit abortion at any stage of pregnancy when a woman’s life or
health is endangered and in the case of severe fetal impairment. (4) In 1996, South Africa
liberalized its law to permit abortion without limitation as to reason during the first 12 weeks of
pregnancy, up to 20 weeks of pregnancy on numerous grounds, and at any time during
pregnancy if there is a risk to the woman’s life or of severe fetal impairment. (5) In 1996,
Poland liberalized its law to permit abortion on social and economic grounds (although this
reform was later reversed by Poland’s Constitutional Court). (6) In 1997, Cambodia liberalized
its abortion law to permit abortion during the first 14 weeks of pregnancy without restriction as
to reason.
53.
In fiscal year 2000, Congress included in Section 599D of the Foreign Operations,
Export Financing and Related Programs Appropriations Act (Public Law 106-113) a set of
facially viewpoint neutral prohibitions on abortion-related lobbying activities by FNGO USAIDrecipients, even using non-USAID funds (the “FY2000 Gag). The President was given authority
to waive these prohibitions up to a cap of $15 million dollars for population assistance
worldwide, although such a waiver would result in a significant decrease in FY 2000 population
funding. President Clinton executed this waiver. Under the waiver, FNGO USAID Population
Assistance recipients were eligible for a greater pool of funds if they certified that they did not
“engage in activities or efforts to alter the laws or governmental policies concerning
circumstances under which abortion is permitted, regulated, or prohibited.” Those who did not
so certify were eligible for funding from a worldwide pool of only $15 million out of a total of
over $370 million.
54.
In January 2000, USAID published a guidance on certification. In particular, the
Guidance contains the question “What does it mean to ‘engage in activities or efforts to alter the
15
laws or governmental policies of any foreign country concerning the circumstances under which
abortion is permitted, regulated, or prohibited’?” The answer includes the following: “this
language includes an organization’s intentional efforts or activities to alter abortion laws or
policies, whether the objective is more restrictive or less restrictive laws or policies.” (emphasis
added).
55.
Over 400 FNGOs in approximately 62 countries signed contracts with USAID
that incorporate the FY 2000 guidance. Plaintiffs engage in human rights work and public
education efforts to reform abortion laws in most of these countries.
V. Bush Global Gag Rule
56.
On January 22, 2001, and then again by a second Presidential Memorandum on
March 28, 2001 (“the Bush Memorandum”), Defendant Bush re-imposed the 1984 viewpoint,
Reagan-era global gag rule for implementation in all new USAID population program contracts.
Under the Bush law reform gag, USAID now permits FNGOs funded by USAID, with their
private funding, to seek to make abortions illegal and more dangerous, and to associate with,
form strategic alliances with, and provide information to anti-abortion groups such as Human
Life International.
57.
Under the Bush global gag rule, FNGOs are ineligible for USAID funding unless
they certify that they will not “perform or actively promote abortion as a method of family
planning in USAID recipient countries or provide financial support to any other foreign
nongovernmental organization that conducts such activities.” “Actively promote abortion” is
defined to mean “to commit resources, financial or other, in a substantial or continuing effort to
increase the availability or use of abortion as a method of family planning.” 66 Fed. Reg. At
17311.
16
58.
The Bush censorship order gives some examples of banned political speech.
These examples “include[e], but [are] not limited to”: (1) “[l]obbying a foreign government to
legalize or make available abortion as a method of family planning or lobbying such a
government to continue the legality of abortion as a method of family planning”; and (2)
“[c]onducting a public information campaign in USAID recipient countries regarding the
benefits and/or availability of abortion as a method of family planning.” Id. These examples are
not intended by USAID to be an exhaustive list of prohibited activities. Id.
59.
The Bush censorship order permits anti-abortion political speech; FNGOs can
lobby to make abortion illegal, or to preserve policies or laws that render abortion unsafe.
FNGOs may also conduct public information campaigns regarding the detriments of abortion as
a method of family planning in their own countries or in international forums, such as the United
Nations. FNGOs that want to conduct such anti-abortion lobbying campaigns can do so with
USAID funds or with private funds.
60.
The Bush censorship order excludes only two categories of speech from its
definition of promoting abortion “as a method of family planning”: (1) “referrals for abortion as
a result of rape, incest or if the life of the mother would be endangered if the fetus were carried
to term”; and (2) “treatment of injuries or illnesses caused by legal or illegal abortions, for
example, post-abortion care.” 66 Fed. Reg. at 17311.
61.
Because these are the only two activities specifically excluded from censorship,
and because the list of activities specifically included in that definition is not exhaustive, it is
unclear whether lobbying a foreign government or conducting a public information campaign to
legalize abortion only in cases of rape, incest, or where the woman’s life is in jeopardy would
violate the Bush global gag rule.
17
62.
The Bush global gag rule has a technical exception to allow an individual
associated with a FNGO to conduct activities prohibited by the global gag rule, but deprives such
an individual of all financial support for those activities and requires the FNGO to take
“reasonable steps to ensure that the individual does not improperly represent that the individual
is acting on behalf of the organization.” Id. at 19. This vague technicality does not work in
practice because of the broad chilling effect of the gag rule. Moreover, even if it could be
followed, the speech and law reform activities of lawyers, health workers, doctors, counselors,
and patients associated with FNGOs are severely impaired if they cannot use the imprimatur of
their organization, with its attendant overall experience and expertise to legitimize and maximize
the effectiveness of their speech. Upon information and belief, USAID has not yet
communicated this new policy to all FNGOs receiving USAID funds.
FACTUAL ALLEGATIONS
I.
Political Speech and Legal Advocacy about International Human Rights is Global.
63.
Political speech and advocacy about international human rights must reach a
range of audiences worldwide, and must draw upon information garnered worldwide, to be
maximally effective. It therefore often transcends national borders.
64.
CRLP engages in political speech and advocacy about international human rights
worldwide, including, but not limited to, in the United Nations, in foreign countries, and in the
United States.
65.
CRLP advocates that laws criminalizing and restricting abortion violate
internationally recognized rights. This political speech and advocacy is aimed at promoting a
right to abortion in the United States and in every other country on Earth.
18
66.
In the U.S., CRLP advocates international human rights protection for abortion to
bolster efforts to preserve Roe v. Wade.
67.
Because CRLP’s political speech and advocacy about international human rights
transcends national borders, any interference with its effectiveness in one country interferes with
its effectiveness worldwide and in the United States.
68.
The law reform gag interferes with the effectiveness of CRLP’s political speech
and advocacy in the United States, international forums, and in each country in which USAID
provides funds to FNGOs.
69.
Upon information and belief, USAID provides funds subject to the global gag rule
to FNGOs in the following countries: Albania, Armenia, Azerbaijan, Bangladesh, Benin,
Bolivia, Botswana, Burkina Faso, Cambodia, Cameroon, Cote d’Ivoire, Dominican Republic,
Ecuador, Egypt, El Salvador, Eritrea, Ethiopia, Gambia, Georgia, Ghana, Guatemala, Guinea,
Haiti, Honduras, India, Jamaica, Jordan, Kazakhstan, Kenya, Kyrgyzstan, Liberia, Madagascar,
Malawi, Mali, Moldova, Morocco, Mozambique, Nepal, Nicaragua, Nigeria, Paraguay, Peru,
Philippines, Romania, Russia, Rwanda, Senegal, South Africa, Tajikistan, Tanzania, Togo,
Turkey, Turkmenistan, Uganda, Ukraine, Uzbekistan, West Bank/Gaza, Yemen, Zambia, and
Zimbabwe.
70.
CRLP engages in political speech and advocacy designed to promote abortion as
an international human right in international forums with lawyers and advocates from all these
countries and currently has specific projects in the following subset of the countries identified in
the prior paragraph: Albania, Bangladesh, Benin, Bolivia, Burkina Faso, Cameroon, Cote
d’Ivoire, El Salvador, Ethiopia, Ghana, Guatemala, India, Jamaica, Kenya, Mali, Nepal, Nigeria,
Peru, Romania, Russia, South Africa, Tanzania, and Zimbabwe.
19
71.
A major element of CRLP’s political advocacy for abortion law reform has been
to research and publish data on abortion laws worldwide, including documentation of a global
trend towards liberalization of abortion laws. CRLP’s annual world abortion map is used
internationally and by the media in this country. The law reform gag will impede CRLP’s ability
and the ability of Plaintiff Katzive to ensure that this data is accurate and up to date in each of the
countries listed in ¶ 69.
72.
A USAID study concluded that the Mexico City Policy chilled the speech,
association, and advocacy activities of FNGOs beyond the terms of the Policy. Upon
information and belief, the Bush global gag rule will similarly chill speech and advocacy
activities by FNGOs and, consequently, by the Plaintiffs. For example, several representatives
of FNGOs subject to the Bush law reform gag have been reluctant to provide Plaintiffs with
affidavits to this Court in support of this Complaint and its accompanying motion for injunctive
relief because of fear that such action will itself be viewed by USAID as violative of the law
reform gag.
73.
Abortion reform movements are much more active in many countries now than
they were in the 1980s. Plaintiffs therefore expect that the chilling effect will be more
pronounced now and more detrimental to local efforts to bring laws and policies in line with the
liberal laws of virtually all industrialized countries, including the United States. In addition, the
chilling effect will be more pronounced on efforts by Plaintiffs, in cooperation with FNGOs, to
bring local laws and policies into compliance with international norms as set forth in documents
such as the Cairo Programme of Action and Beijing Platform for Action.
74.
For example, in May of this year, CRLP spearheaded a political advertisement in
the Bolivian daily newspaper, La Razon, urging the Bolivian government to liberalize its
abortion laws to protect women’s health and human rights. Because of the law reform gag,
20
several influential Bolivian FNGOs gagged by the U.S. government were unwilling to associate
with us and sign on to the advertisement, thus diminishing its impact.
II.
Nexus to United States Domestic Law.
75.
Since the decision of the United States Supreme Court in Roe v. Wade, there has
existed an ongoing political, legal, and social movement in the United States to overturn Roe,
prohibit abortion, and protect fetal life from the moment of conception.
76.
In order to prepare for the eventuality that Roe may be overruled by the United
States Supreme Court and that, consequently, the United States Constitution no longer protects
women’s right to choose abortion, CRLP has worked and will continue to work to guarantee that
the right to abortion be protected as an internationally recognized human right by treaties ratified
by the United States Senate, international conference documents endorsed by the United States,
and customary international law.
77.
Because treaties ratified by the United States Senate have the same status as
federal statutes, inconsistent state statutes or policies are invalid under the Supremacy Clause of
the United States Constitution. Thus, by working to establish the right to abortion as a human
right in treaties ratified by the United States Senate, CRLP advances its mission of protecting
women’s access to abortion from interference or prohibition by the States.
78.
Customary international law also pre-empts inconsistent state statutes and
policies. Thus, by working to establish the right to abortion as a human right in customary
international law, CRLP fulfills its mission of protecting women’s access to abortion from
interference or prohibition by the States.
79.
Customary international law is embodied, inter alia, in treaties (even if not
ratified by the United States), the writings of international law jurists, and documents produced
21
by United Nations international conferences. The Restatement Third of the Foreign Relations
Law of the United States (American Law Institute 1987) defines customary international law as
resulting “from a general and consistent practice of states followed by them from a sense of legal
obligation.” Id. at § 102(2).
III.
Interference with Plaintiffs’ Human Rights Law Reform Efforts and with Plaintiffs’
Freedom of Expression.
80.
CRLP uses U.S. laws and international law, treaties, conference agreements, and
customary law to advocate for human rights law reform here and overseas.
81.
One of CRLP’s central political principles is that the concept of reproductive
rights is a holistic one that includes abortion rights. To separate out or censor one aspect of
reproductive rights, such as removing the topic of abortion from a conference agenda, skews
CRLP’s central goal and violates its mission.
82.
CRLP advocates for both our own government and other governments to sign
treaties and incorporate language recognizing reproductive rights as a human right in
international human rights instruments. CRLP also monitors governments and proposes national
law and policy changes.
83.
CRLP advocates in other countries, at the United Nations, and at conferences of
84.
CRLP works to form alliances with NGOs in the United States, in the United
NGOs.
Nations, and abroad in order to achieve its central mission, including making abortion legal,
stopping the jailing of women for abortion, and suggesting laws or policies to make abortion
safer or more available.
22
85.
CRLP’s mission is purely one of political advocacy for human rights and will not
be complete until abortion laws here and abroad have been reformed so that abortion is treated
equally with other legal medical procedures, abortion safety is promoted by law and government
policy, and speech and political advocacy about abortion is given the highest protection
regardless of national borders, as is all other speech and political advocacy about issues of great
public concern.
86.
By working to ensure that documents produced by United Nations international
conferences support rather than oppose abortion as an internationally recognized human right,
CRLP furthers its goal of establishing that customary international law protects women’s right to
abortion. In addition, by working to ensure that all nations practice respect for women’s
reproductive rights, including the right to choose abortion, CRLP also furthers its goal of
establishing that customary international law protects women’s right to abortion. See ¶ 79 supra
(Restatement definition of customary international law).
87.
CRLP has been recognized by opponents of abortion as a leader among NGOs
worldwide in ensuring that documents produced at United Nations conferences support rather
than oppose abortion as an internationally recognized human right.
88.
One mechanism for securing United States Senate ratification of treaties
protective of abortion as a human right is to obtain ratification of such treaties by as many other
nations as possible. When a critical mass of nations ratifies a treaty, the United States becomes
increasingly isolated in the international community and among its geopolitical allies. Moreover,
generally recognized international legal norms may, if endorsed and accepted by the vast
majority of nations, become part of customary international law and thus binding on the United
States even if it does not ratify or endorse those norms. Thus, it is essential to CRLP’s goal of
protecting abortion rights in the United States by international law that it be able to engage in
23
unfettered political speech and advocacy to obtain ratification by foreign governments of treaties
that protect abortion rights, and endorsement by foreign governments of international human
rights norms that protect abortion rights.
89.
In addition, CRLP advocates in foreign countries for implementation and
interpretations of existing treaties and other international human rights agreements that favor
protection of reproductive rights, including abortion, as internationally recognized human rights.
One mechanism for achieving this goal is to work with FNGOs to obtain decisions from
international tribunals or national courts of foreign countries that favor such interpretations. This
work may involve cooperative public education campaigns, co-representation of clients in
litigation before such tribunals and courts, and obtaining favorable statements from officials of
foreign governments. By obtaining such interpretations, CRLP also advances its goal of
ensuring that courts and administrative agencies in the United States will also adopt
interpretations of international human rights treaties and instruments that recognize reproductive
rights, including abortion, as internationally human rights.
90.
Another mechanism for securing acceptance of reproductive rights, including
abortion, as international human rights is to ensure compliance by foreign governments and the
United States with international law that protects such rights. One way of doing so is to prepare
and publish “shadow reports” on the status, both in the United States and foreign countries, of
reproductive rights and access to reproductive health care, including abortion. Such reports
“shadow” government reports to United Nations treaty monitoring bodies. The monitoring
bodies then issue recommendations to governments concerning actions they should take to
comply with their treaty obligations. In order to prepare the most effective shadow reports,
CRLP gathers information from the most relevant source available, including FNGOs, about the
status of reproductive health care, including abortion, in their countries.
24
91.
During the period from 1997 to 2000, CRLP has prepared such shadow reports on
reproductive rights on the following countries and submitted them to the indicated United
Nations monitoring body:
Human Rights Committee: Tanzania, July 1998: Argentina, October 2000; Peru, October 2000;
Croatia, March 2001
Committee on the Elimination of Discrimination Against Women: Mexico, December 1997;
Zimbabwe, December 1997; Nigeria, June 1998; Peru, June 1998; South Africa, June 1998;
Colombia, December 1998; Chile, May 1999; Lithuania, June 2000; Romania, June 2000
Children’s Rights Committee: Benin, May 1999; Russia, September 1999; Mali, September 1999
Committee on Economic, Social and Cultural Rights: Cameroon, November 1999; Bolivia, April
2001
92.
In each shadow report, CRLP relied upon and continues to rely upon information
obtained from FNGOs. During the period of the Clinton Administration’s rescission of the
Reagan global gag rule, Plaintiffs were unimpeded by the United States government in obtaining
such information.
93.
These CRLP shadow reports are the first ever submitted to United Nations
monitoring bodies that focus on reproductive rights. In several instances, the United Nations
monitoring bodies have adopted or incorporated recommendations made in CRLP shadow
reports.
94.
The law reform gag, due to its lack of precision about what conduct it prohibits,
causes many USAID recipient FNGOs to avoid nearly all discussion of abortion, even though
some such discussion may technically be permissible.
95.
One USAID-recipient FNGO, because of the law reform gag’s lack of precision
about what conduct it prohibits, has declined to distribute CRLP’s literature and publications.
96.
In many countries, some of CRLP’s potential allies are subject to the law reform
gag and thus are unable to engage in democratic law reform of their countries’ abortion laws or
25
participate with CRLP freely in international meetings and conferences in order to advance
protection of abortion as an international human right.
97.
CRLP has invested extensive resources in laying the groundwork for improving
access to reproductive health care, including abortion law reform, in many countries in which the
law reform gag now impairs the progress and effectiveness of CRLP’s work.
98.
CRLP joins with local FNGOs to petition foreign governments to comply with
international human rights instruments, including, for example, the Universal Declaration on
Human Rights, the United Nations Charter, and United Nations Conference documents such as
the Cairo Programme of Action, and the Beijing Platform for Action.
99.
Thus, the law reform gag interferes with Plaintiffs’ political and legal advocacy
and law reform efforts in numerous ways, including but not limited to the following: First, it
prevents Plaintiffs from forming alliances with potential partner organizations in order to
increase their abortion-related advocacy efforts’ effectiveness.
100.
Second, it interferes with Plaintiffs’ ability to obtain information necessary to
accomplish their abortion law reform efforts, from USAID recipient FNGOs.
101.
Third, the law reform gag interferes with Plaintiffs’ ability to obtain clients in
foreign countries by barring USAID recipient FNGOs from assisting CRLP in that effort. Such
clients could include those who would bring legal actions in international legal tribunals or the
legal tribunals of foreign countries and those whose circumstances would provide information to
Plaintiffs that would enable them to advocate for abortion law reform more effectively in
legislative bodies or with government ministries.
102.
Fourth, the law reform gag interferes with Plaintiffs’ ability to distribute their
publications because FNGOs that would otherwise distribute the publications in foreign
countries are prohibited or chilled from doing so.
26
103.
Fifth, the law reform gag interferes with Plaintiffs’ ability to achieve abortion law
reform in the United States. By interfering with Plaintiffs’ efforts to establish the right to
abortion as a human right internationally, the gag rule also interferes with Plaintiffs’ efforts to
persuade the United States government and the governments of the several states and the people
of the United States that the right to abortion should be given the highest level of legal
protection. Plaintiffs hope to achieve overwhelming international consensus that abortion should
be protected as an international human right so that recalcitrant nations, including the United
States and its constituent states, will experience increased international pressure to reform
abortion laws.
104.
Sixth, the law reform gag interferes with Plaintiffs’ ability to form alliances with
USAID recipient FNGOs for the purpose of influencing international conferences, international
legal tribunals, and world public opinion.
105.
Seventh, the law reform gag interferes with Plaintiffs’ conveyance of their ideas
and political speech about abortion by chilling or prohibiting FNGOs from attending
presentations given by Plaintiffs and from listening to Plaintiffs’ political advocacy.
106.
Eighth, the law reform gag interferes with Plaintiffs’ ability to receive ideas and
information from FNGOs because it prohibits or chills their speech about abortion.
107.
Ninth, the law reform gag interferes with Plaintiffs’ ability to lobby the United
States government to repeal the Bush global gag rule and the Helms Amendment because they
are impeded from documenting the impact of these restrictions.
27
IV.
CRLP’s International Law Reform Projects.
A.
Women of the World Project.
108.
One of CRLP’s major projects has been to improve access to reproductive health
care worldwide, including abortion. CRLP calls this project its “Women of the World” (WOW)
project. Beginning in 1995, CRLP began investing over one million dollars to initiate the first
phase of WOW, which involves collecting and publishing reports summarizing the laws and
policies affecting reproductive health care, including abortion, of countries in six regions around
the world: (1) Francophone Africa, (2) Anglophone Africa, (3) Latin America and the Caribbean,
(4) East and Southeast Asia, (5) South Asia, (6) Central and Eastern Europe, and (7) the Middle
East and North Africa. To date, CRLP has completed this first phase for regions (1), (2), and (3),
and (6).
109.
The second phase of the WOW project is to hold meetings attended by FNGOs
and their staffs from the region covered by the WOW report after its publication. This meeting is
designed to develop recommendations for legal and policy reforms for the region covered by the
report, including specifically abortion law reform. CRLP has thus far convened such regional
meetings in cooperation with FNGOs for the following regions: Francophone Africa,
Anglophone Africa, Latin America and the Caribbean, and Central and Eastern Europe.
110.
At CRLP’s 1997 launch conference for its Anglophone Africa WOW report, held
in Nairobi, Kenya, several FNGOs participated who, upon information and belief, are now
subject to the law reform gag and would be chilled from participating because the conference
report makes recommendations related to abortion.
111.
The regional meetings described above launch public education and law reform
efforts by CRLP and its FNGO partners in the region covered by the WOW report.
28
112.
The public education and law reform efforts of CRLP in these regions are
impeded by the law reform gag. In addition, CRLP’s substantial investment of money and staff
time in beginning the first and second phases of its worldwide law reform project is undermined
by the law reform gag. Had CRLP known that the United States would interfere with the
effectiveness of its public education and law reform, it might, at least, have selected other
regions or countries to work in, and certainly would have taken this interference into account in
selecting focus countries.
113.
Moreover, because the set of countries in which USAID funds FNGOs varies
from year to year, CRLP cannot predict the countries in which its law reform efforts will be
impeded in the future.
B.
Country Projects.
114.
Similarly, CRLP has published a number of individual country reports. After the
publication of such reports, CRLP typically launches the report at a conference. For example, in
2000, CRLP launched a report on Guatemala at a conference held in Guatemala City, Guatemala.
One FNGO attended the conference only after CRLP removed some of CRLP’s publications
promoting abortion law reform from display at the meeting.
115.
The law reform gag impedes Plaintiffs’ dissemination of country reports and
impedes their ability to conduct follow-up law reform activities, including, inter alia, lobbying in
cooperation with FNGOs, litigation in cooperation with FNGOs, and public education campaigns
in cooperation with FNGOs. For these and other reasons, the law reform gag renders Plaintiffs’
political speech and legal advocacy based on CRLP’s country reports less effective.
29
V.
International Human Rights Principles Endorsed by the United States and Violated
by the Law Reform Gag.
116.
Freedom of expression (including the right to impart and receive information),
freedom of association, and freedom from discrimination based on political opinion are all rights
protected by customary international law. These basic rights are reflected and embodied in a
number of treaties and agreements endorsed by the United States.
A.
Ratified Treaties.
117.
The United States Senate ratified the International Covenant on Civil and Political
Rights (ICCPR) in 1992. Article 19 of the ICCPR states:
Everyone shall have the right to freedom of expression; this right shall include the
freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice.
The law reform gag violates this statement of international human rights law endorsed by the
United States.
118.
Article 22 of ICCPR states: “Everyone shall have the right to freedom of
association with others . . . .” The law reform gag violates this statement of international human
rights law endorsed by the United States.
119.
Article 25 of ICCPR states: “Every citizen shall have the right and the opportunity
[without discrimination, inter alia, based on political or other opinion] and without unreasonable
restrictions: a. To take part in the conduct of public affairs, directly or through freely chosen
representatives . . . .” The law reform gag violates this statement of international human rights
law endorsed by the United States.
120.
Article 26 of ICCPR states:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
30
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as . . . political or other opinion . . .
The law reform gag violates this statement of international human rights law endorsed by the
United States.
121.
The United States Senate ratified the United Nations Charter (UNC) in 1945.
Article I of the UNC states that one purpose of the United Nation is “promoting and encouraging
respect for human rights and for fundamental freedoms for all . . . .” Articles 55 of the UNC
provides:
[W]ith a view to the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, the United Nations
shall promote: … (c) universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language or
religion.
Article 56 of the UNC provides:
[A]ll Members pledge themselves to take joint and separate action in cooperation
with the Organization for the achievement of the purposes set forth in Article 55.
The law reform gag violates these statements of international human rights law endorsed by the
United States.
B.
Other International Documents Endorsed by the United States.
122.
In 1948, United States voted for adoption of the Universal Declaration on Human
Rights (UDHR) by the United Nations General Assembly. Article 19 of the UDHR states:
Everyone has the right to freedom of expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information
and ideas through any media and regardless of frontiers.
The law reform gag violates this statement of international human rights law endorsed by the
United States.
31
123.
Article 20 of the UDHR states: “Everyone has the right to freedom of peaceful
assembly and association.” The law reform gag violates this statement of international human
rights law endorsed by the United States.
124.
Article 22 of the UDHR states: “Everyone . . . is entitled to realization, through
national effort and international cooperation . . . , of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.” The law reform gag
violates this statement of international human rights law endorsed by the United States.
125.
The United States voted for the adoption in 1948 of the American Declaration of
the Rights and Duties of Man (ADR) by the Ninth International Conference of American States.
Article 4 of the ADR states:
Every person has the right to freedom of investigation, of opinion, and of the
expression and dissemination of ideas, by any medium whatsoever.
The global gag rule violates this statement of international human rights law endorsed by the
United States.
126.
Article 22 of the ADR states:
Every person has the right to associate with others to promote, exercise and
protect his legitimate interests of a political, economic, religious, social, cultural,
professional, labor union or other nature.
The global gag rule violates this statement of international human rights law endorsed by the
United States.
127.
Article 24 of the ADR states:
Every person has the right to submit respectful petitions to any competent
authority, for reasons of either general or private interest, and the right to obtain a
prompt decision thereon.
The global gag rule violates this statement of international human rights law endorsed by the
United States.
32
128.
At the World Conference on Human Rights held in Vienna in 1993, the United
States endorsed the Vienna Declaration and Programme of Action. Paragraph 38 of section I of
the Vienna Declaration recognizes the “important role of non-governmental organizations in the
promotion of all human rights and in humanitarian activities at national, regional and
international levels,” and states:
Non-governmental organizations and their members genuinely involved in the
field of human rights should enjoy the rights and freedoms recognized in the
Universal Declaration of Human Rights, and the protection of national law. . . .
Non-governmental organizations should be free to carry out their human rights
activities, without interference, within the framework of national law and the
Universal Declaration of Human Rights.
The law reform gag violates this statement of international human rights law endorsed by the
United States.
129.
Congress has adopted the following language as part of the FAA:
The United States shall, in accordance with its international obligations as set
forth in the Charter of the United Nations and in keeping with the constitutional
heritage and traditions of the United States, promote and encourage increased
respect for human rights and fundamental freedoms throughout the world without
distinction as to race, sex, language or religion. Accordingly, a principal goal of
the United States shall be to promote the increased observance of internationally
recognized human rights in all countries.
22 U.S.C. § 2304(a)(1). The law reform gag is inconsistent with this statement of adherence to
international human rights norms by the United States government.
VI.
Lack of Adequate Alternative Avenues for Plaintiffs’ Mission.
130.
Plaintiffs have no adequate alternative for the accomplishment of their mission to
reform abortion law worldwide, including the United States, to replace or compensate for the law
reform gag’s interference with their rights.
33
VII.
Lack of Justification.
131.
The law reform gag is not justified by any compelling or legitimate state interest,
and is not narrowly tailored to achieve any such interest.
CAUSES OF ACTION
I.
FIRST CAUSE OF ACTION
132.
Plaintiffs hereby incorporate by reference paragraphs 1 to 131 above.
133.
The law reform gag violates the First Amendment to the United States
Constitution because it infringes plaintiffs’ freedom of speech.
II.
SECOND CAUSE OF ACTION
134.
Plaintiffs hereby incorporate by reference paragraphs 1 to 133 above.
135.
The law reform gag violates the First Amendment to the United States
Constitution because it infringes plaintiffs’ freedom of association and peaceable assembly.
III.
THIRD CAUSE OF ACTION
136.
Plaintiffs hereby incorporate by reference paragraphs 1 to 135 above.
137.
The law reform gag violates the Equal Protection component of the Fifth
Amendment to the United States Constitution because it prohibits plaintiffs from associating
with USAID-recipient FNGOs for the purpose of promoting abortion law reform, but permits
other United States citizens and residents to associate with USAID-recipient FNGOs for the
purpose of opposing abortion law reform, and, more generally, permits association with USAIDrecipient FNGOs for the purpose of rendering speech opposed to abortion more effective. Thus,
the global gag rule impermissibly discriminates based on the exercise of a fundamental right.
34
V.
FOURTH CAUSE OF ACTION
138.
Plaintiffs hereby incorporate by reference paragraphs 1 to 137 above.
139.
The law reform gag violates the Fifth Amendment’s due process clause because it
fails to give clear notice of what political speech, public education and law reform activities it
prohibits and encourages arbitrary and discriminatory enforcement of its restrictions.
VI.
FIFTH CAUSE OF ACTION
140.
Plaintiffs hereby incorporate by reference paragraphs 1 to 139 above.
141.
The law reform gag violates plaintiffs’ rights under customary international law in
that it infringes plaintiffs’ freedom of expression, to seek, receive and impart information,
regardless of frontiers, to take part in public affairs without discrimination as to political opinion,
and to equality before the law, all as reflected and embodied in, inter alia: (1) Articles 19, 22, 25
and 26 of the International Covenant on Civil and Political Rights; (2) Articles 19, 20, and 22 of
the Universal Declaration on Human Rights; (3) 22 U.S.C. § 6201 (stating policy of United
States to promote Article 19 of UDHR), (4) 22 U.S.C. § 2304(a)(1); and (5) Articles 4, 22 and 24
of the American Declaration of the Rights and Duties of Man.
35
WHEREFORE Plaintiffs ask this Court:
A.
to issue a preliminary injunction barring the Defendants and their agents and
successors in office during the pendency of this lawsuit from enforcing the law reform gag;
B.
to declare the law reform gag unconstitutional and violative of customary
international law;
C.
to enter a permanent injunction barring the Defendants and their agents and
successors in office from enforcing the law reform gag; and
D.
to grant plaintiffs such other and further and relief as the Court deems proper,
including their attorney’s fees and costs as allowable under 28 U.S.C. § 2412 and 28 U.S.C. §
1920.
Respectfully submitted,
________________________
SIMON HELLER (SH8760)
JANET BENSHOOF (JB5794)
SHERRIE L. RUSSELL-BROWN (SR9487)
The Center for Reproductive Law & Policy
120 Wall Street, 14th floor
New York, New York 10005
(917) 637-3600
Attorneys for Plaintiffs
36